## ?BfEATTQOFTEXAS

The Honorable Charles R. Barden, P. E. Executive Secretary Texas Air Control Board 820East 53rd Street Austin, Texas 78751 Dear Mr. Barden: Opinion No. H- 177 Re: Point at which samples are to be taken to determine emission of hydrogen sulfide
Your opinion request~asks the following question:

“For purposes ofproperty line sampling in accordance with the Rules and Regualtions ofthe Texas Air Control Board, if an oil company owns the oil and gas leasehold rights for a certain tract of land, is that entire tract under common control or ownership ofthe oil company? Or, in the alternative, is only the land actually being used for oil and gas production at a particular point in time under the control or ownership ofthe company?” The Texas Clean Air Act (Article 4477-5, Vernon’s Texas Civil Statutes) establishes that The Texas Air Control Board’is to administer its provisions. (Article 4477-5, V.T. C.S., Subchapters Band C). Section 3.09(a) of the Act gives the Board authority to make rules and regulations consistent with the intent and purposes ofthe Act and to amend them. It is provided in $3.09(b):

“Before adopting any rules and regulations, or any amendments or repeal thereof, the board shall hold a public hearing. Ifthe rule~or regulation, or amendment or repeal thereof, will have a state-wide effect, notice . . . ofthe hearing shall be published one time at least 20days:

p. 808The Honorable Charles R. Barden, page 2 (H-177)
prior to the scheduled date of the hearing
. . . . The board shall also comply, as appropriate, with the requirements of , . . Article 6252-13, Vernon’s Texas Civil Statutes. . . .” Subsection 3.10 (f) ofthe-Act specifically authorizes the Board to prescribe “sampling methods and procedures. ” One ofthe areas ofactivity ofthe Board in which it is authorized to make rules and regulations is the “measurement and monitoring ofthe emissions ofair contaminants from any source. . . .‘I (§3.06) Pursuant to its statutory authority, the Board has adopted Regulation III entitled “Control ofAir Pollution from Sulfur Compounds. ” Contained in this regulation are limitations on the amount ofhydrogen sulfide which may be emitted into the atmosphere, with the provision that determination ofthe concentration is to be in accordance with the detailed procedures in Appendix B. Paragraph IIIA provides that hydrogen sulfide emission levels are to be measured at or beyond the “property line. ” Rule 1.28 ofthe General Rules ofthe Board is:

“Property. All land under common control or ownership onwhich any source or combination of sources is located, coupled with all improvements on such land, and all fixed or movable objects on such land.
. . .” Your letter states:

“It has been the practice of staff investigators to conduct property line sampling at the fenceline surrounding individual ‘tank batteries, ’feeling that this is &e land actually under control ofthe particular oil company. ‘I In our opinion The Texas CleanAir Act represents a reasonable exercise of the State% police power ‘designed to protect the public health. and welfare. Williams v. .Sta’te, 176 S. W., Zd, 177

p. 809The Honorable Charles R. Bard&. page 3(H-177)

Tex. Crim. 1943); State v. City ofAustin, 331S.W. 2d 737 (Tex. 1960); 12Tex. Jur. 2d, Constitutional Law, $70, p.415, et seq. and cases’ cited. We are also ofthe opinion that, in the Texas Clean Air Act, the Legislature has prescribed sufficient standards to guide the Air Control Board in its proceedings and that delegation to the Board ofthe:power to make rules and regulations is not unconstitutional. Williams v. State, supra; Housing Authority of City ofDallas v. Higginbotham, 143S.W. 2d 79 (Tex. 1940); Southwestern Savings & Loan Association ofHouston v. Falkner, 331S.W. 2d 917(Tex. 1960); 12Tex. Jur. 2d, Constitutional Law,§ $62, 65. The precise question you have asked us calls for a factual determination which this office cannot make. That determination must be made byyour staff, based upon their particular expertise and their familiarity with the individual areas in question. SUMMARY The enactment ofthe Texas Clean Air Act (Article 4477-5. V. T. C.S.)and the authorization to the Air Control Board to adopt rules and regulations for the measurement of emissions of contaminants are constitutional. Factual questions arising under those rules and regulations must be resolved,in the first instance, by the Board, and ultimately, by the courts. Very truly yours, 

# cl JOHN L. HILL Attorney General of Texas

p. 810The Honorable Charles R. Barden, page 4 (H-177)

APPROVEfI:

DAVID M. KENDALL, Chairman Opinion Committee

p. 811